Legislation Course @ Moritz College of Law

Additional (optional) readings on residency restrictions

Anyone deeply interested in the law, policy and litigation surrounding sex offender residency restrictions should check out a new student note (and other links) discussed here at my SL&P blog.  In addition, the group Human Rights Watch recently produced this extraordinary report titled "No Easy Answers: Sex Offender Laws in the US."  Though covering lots of issues, Chapter 9 of the report is focused on residency restriction laws, and it details some of the forms these laws have taken in states other than Ohio:

• In 2002, Iowa legislators passed a law prohibiting registered offenders whose victims were minors from living within 2,000 feet of any school or child care center. Violators face up to two years in prison and a $5,000 fine.

• In 2006, Georgia passed a sex offender zoning law which would prohibit any registered sex offender from living within 1,000 feet of places where children gather, including bus stops and places of religious worship.

• In November 2006, California voters by a large measure (70 percent) passed Proposition 83, a ballot initiative that, among other things, prohibits any registered sex offender from living within 2,000 feet of any school, daycare facility, or place where children gather.

Seeking deep thoughts on possible SCOTUS "whos"

Over at SL&P, I have this long new post about possible nominees for the US Supreme Court in the next administration.  The post critiques Jeffrey Rosen's recent article at The New Republic, titled "Short Bench: Why the Dems lack Supreme Court nominees," and it also highlights the diverse background of some of the Court's most famous Justices. 

Though the TNR article and my response are focused on potential SCOTUS nominees for a Democratic president, I am eager to hear from students with any deep thoughts about who should serve on the Supreme Court.  In an interesting article available here, Professor Adrian Vermeule (who was a law school classmate of mine) has argued that we should have at least one "lay Justice" -- i.e., he contends that "an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court."

I am eager to hear the thoughts of 1Ls about "who" should be on the Supreme Court.  In other words, Berman bonus points go to students who use the comments to (a) describe the type of person that should be a Justice, and/or (b) suggest specific persons that you hope/want the next President to consider.

Status quo bias and system justification theory

As promised, starting this week we will start spend a lot more class time focused on the textbook readings.  This week, for example, I am going to really zero in on the Warshow and Morgane cases, and everyone should make sure they understand what going on in these cases in terms of legislative interpretation.

In addition, though we will be focused on these cases, I am also going to be developing a lot of important broad new conceptual ideas.  Most of these ideas are about legal theory and are covered in the text.  But I also want to discussion the social-psychological concepts of status quo bias and system justification theory.  For background, it is sufficient for you to check out Wikipedia entries for SQB and SJT, though students deeply interested in these ideas are encouraged to check out this short article titled "Antecedents and Consequences of System-Justifying Ideologies."

"Why Voters Play Follow-the-Leader"

The title of this post is the title of this Washington Post article.  Here are snippets:

How do we form preferences when we do not fully understand complex issues?  We fall back on heuristics, or mental shortcuts.  New research suggests the most powerful of these is to find leaders with whom we feel cultural kinship -- and then follow whatever they recommend.

"It is much easier to look at someone and say, 'What are those person's values -- are they like mine or not?  If they are like mine, I can trust this person to come up with policies that are in my interest because they share my values,' " said Donald Braman, an anthropologist at George Washington University Law School. "This is what happens in a lot of politics."

In an intriguing set of experiments, Braman, Yale University law professor Dan Kahan and others show that people reduce complex policy matters to a question of personal values.  This simplifies decisions, but it places our conclusions -- and even our perception of facts -- at the mercy of traits that are ultimately arbitrary....

Kahan and Braman found that people did not realize how their views were shaped by personal values.  One implication of the research is that when people clash on hot-button issues, their disagreements may have more to do with clashing values than facts.  One person may conclude nanotechnology is dangerous while another person concludes it is safe, but neither realizes their conclusions are being driven by underlying values that have nothing to do with nanotechnology....

"One of the problems cultural cognition creates is it leads people to have divergent views of the facts, so when they debate one another it seems like they are talking past one another," Braman said.  People think their opponents "are either 'completely ignorant and deluded of the facts that are obvious to me,' or they know the facts but are ignoring them and selecting the facts in a biased and untrustworthy way.  That leads to deep distrust."

The student who alerted me to this article suggested that it might shine some light on the now-raging debates over our final/exam choices (although I hope my initial decision to put this matter up for discussion has not generated too much "deep distrust").  Indeed, I plan to provides some leadership on the debate very soon, and I suppose we will see if students/voters in our class feel a "cultural kinship" and follow my lead on this complex issue.

Speaking of caucuses versus primaries...

check out this this jurisprudence essay online at Slate from Professor Richard L. Hasen, titled "Whatever Happened to 'One Person, One Vote'? Why the crazy caucus and primary rules are legal."  Here is how it starts:

In the Iowa Democratic caucuses last month, Democrats had no right to cast a secret ballot. In tonight's Super Tuesday primary, Republican Party rules dictate that the state of Georgia will send more delegates (72) than Illinois (70) to the party's presidential nominating convention. Illinois has a larger population than Georgia, but Georgia has more reliable Republican voters. In the Democratic Nevada caucuses, rural votes counted more than urban ones, and while Hillary Clinton got more popular votes in the state than Barack Obama, it appears Obama will capture 13 of Nevada's Democratic delegates compared to Clinton's 12. Orthodox Jews complained that they couldn't vote in the Saturday morning Nevada caucuses. In California tonight, if neither Clinton nor Obama gets more than 62 percent of the vote in a congressional district, the two are likely to split the district-based delegates evenly. On the Republican side in the California primary, Romney and McCain are targeting the few Republican voters in heavily Democratic districts, because some of California's Republican delegates are awarded based on the winner of each congressional district, not the statewide winner. And when the primaries are over, under the Democratic Party rules, "superdelegates" such as big-city mayors—who have not been chosen by voters—could hold the balance of power between Clinton and Obama in a brokered summer convention.

What gives? Didn't the Supreme Court declare a "one person, one vote" principle back in the 1960s requiring the equal weighting of votes? And shouldn't this render most of these party rules unconstitutional? The short answer is no. Although most of the deviations from "one person, one vote" would be unconstitutional if a state put them to work in the general election for president, party primaries and caucuses are different. Aside from some really egregious no-nos, such as weighting candidate delegate strength according to the race of their supporters, courts are likely to stay out of disputes over the rules for choosing the parties' presidential nominees.

The reason for the different treatment is the hybrid nature of our electoral system. Party primaries and caucuses have elements that are public (the state often pays to run them, and they lead to choices on the public general election ballot) and elements that are private (political parties are not government entities, they are private associations). Private associations have a First Amendment right to exclude those who disagree with them, and to structure their internal affairs as they see fit. Presidential primaries straddle this public-private divide because presidential nominations are ultimately made at party-run conventions.

So, dear voters, should we use a causus or a primary system to "elect" the exam/final format for this class?

Putting civil rights history in historical perspective

As I hope many class members realize, the hottest political topic right now relates to the Democratic in-fighting over the history of the Civil Rights Act.  Though there is lots of interesting aspects of this on-going story, I thought this article provides a thoughtful (and student-friendly) discussion of what the author calls "the historical record."